Procedural aspects of compliance: a. Procedural obligations and principles, b. Monitoring, c. Verification

Treaty provisions determine the type of obligations State Parties possess vis-à-vis each other, the type of commitments they are engaged in and the degree to which States are supposed to comply with the commitments under MEAs.

MEAs usually contain some provisions for information exchange. The Secretariat of each regime is usually endowed with the functions of receiving, processing and distributing the relevant data. Moreover, MEAs contain a number of activities to be performed jointly by the State Parties of the respective regime.

Substantive obligations are complemented by procedural duties under the primary norms of the regime. Substantive obligations are determined by treaty law and customary international law, such as the obligation to prevent environmental damage, curb emissions, protect biodiversity, include species on lists or control the transboundary movement of some substances.

a Procedural obligations and principles

The main procedural obligations on the State Parties diversify depending upon the specific MEA and the specific legal framework containing obligations. Under Principle 10 of the Rio Declaration procedural rights consist of access to environmental information, public participation and environmental justice.

The freedom of access to environmental information is key to implementing other rights, such as public participation in environmental matters and access to environmental justice. Access to environmental information as a procedural right implies granting access to relevant environmental information in a range of manners.

The precautionary principle, although substantive, also has a procedural slant, shifting the burden of proof in cases in which there is a risk of environmental harm. These procedural principles, rooted in Principle 10, lead to an increased participation of NGOs and other obligations in the compliance procedure.

Procedural obligations enshrined in environmental treaties are aimed at assisting States in the implementation of substantive obligations by taking national measures and informing them about these by sending information to the respective institutions. The main goal behind providing this information is to create a database for monitoring compliance in addressing the evolution of the measures to regulate the problem. Procedural obligations are the basis upon which

1

Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, Articles 2 to 21, annexes A,B, C and E; United Nations Framework Convention on Climate Change. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 3 March 1973, Articles III-IV. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, Articles 4 and 6. Convention on Biological Diversity, Article 6.

non-compliance mechanisms function; they may vary according to the type of treaty provisions and the treaty bodies instituted.

As observed in the MEAs, state obligations with respect to compliance mechanisms vary significantly, from setting very general procedural obligations to providing information to more sophisticated systems, regulating all the details. Attempts to categorise these different systems may fail as compliance systems can develop over time according to the decisions adopted by the main treaty body.

More general compliance-related obligations foresee the reporting on implementation measures and monitoring of certain environmental variables over time to a treaty body (which might be the Secretariat or the Conference of the Parties): for instance, reporting obligations under the Long-range Transboundary Air Pollution (LRTAP) Convention concerning the reduction of sulphur emissions.[1] Sometimes, environmental treaties set specific deadlines and requirements for the communication of the information. Procedural obligations are further spelled out by asking the respective treaty bodies to verify the data submitted, asking them to complement the information submitted and collect more information on its own standing.

Examples of more detailed compliance mechanisms are those created by the Ramsar Convention. Clearly more complex mechanisms are those established by CITES and the compliance mechanism under the UNFCCC (Article 12).

b Monitoring

The gathering of information about compliance with international environmental standards, which is then fed back to the Secretariat instituted under the respective ME A, is a common mechanism. Reporting activities mainly consist of sending information back, which is then mainly used to monitor national compliance or determine whether the MEA has induced a new behaviour. Reporting requirements may vary from treaty to treaty, with some regimes, such as that in the case of atmospheric pollution, more detailed than others. A lack of proper compliance with reporting requirements may lead to misreporting, which is a grey and borderline area in compliance.

Monitoring concerns the mechanisms for compiling information and reporting on the implementation of obligations. Diverse types of monitoring mechanisms are used in IEL, an area that has remained relatively undeveloped in relation to MEAs?9

Monitoring consists of the measurement over time of the quality of the environment against pre-established standards and activities, and the effects of such activities.

Despite transplants and mutual or reciprocal influences, monitoring systems respond to the nature of the environmental problem they relate to. Continuous emissions monitoring systems (CEMS) are common in the area of air pollution to control the emissions of chlorofluorocarbons (CFCs). The quest for transparency in monitoring refers to broadening the participation of civil society.

c Verification

Verification is an elusive concept in IEL compliance, sometimes deemed a synonym of monitoring: in this book it designates processes and mechanisms used to establish whether a State Party is in compliance with its obligations under the IEL.[2] Enforcement follows if, as a result of the verification process there is a determination of non-compliance with, infringement or breach of the obligations set by the MEA. A variety of differing verification regimes are observed in IEL, especially in the field of air pollution.

Scrutinising the effectiveness of MEAs entails the study of how compliance is verified. International agreements with a proper verification regime in place are more likely to succeed in both negotiation and implementation. The process of verification provides transparency and adds confidence to existing formal and informal agreements, fostering future cooperation and compliance. Beyond compliance with the specific agreement, verification processes produce information that can constitute the technical basis for future agreements and build consensus around key topics.

Verification covers the performance of investigative functions by treaty bodies. Verification is particularly relevant under the climate change regime, being one of the elements of the triad of‘measuring, reporting and verification’ obligations.

Data are furnished by the same governments they are supposed to control. More or less independent sources of information, such as NGOs or media, may be helpful, especially in cases where governments try to sidestep their obligations or deliver no data at all.

Under the Ramsar Convention, a mechanism for the communication and verification of information concerning protected sites is in place. The treaty body which deals with communications possesses broader powers, including the power to verify the information submitted, the power to request additional information and the power to collect independent information proprio motu by using other means.

MONTREAL PROTOCOL

Decision XVII/22: Non-compliance with data-reporting requirements for the purpose of establishing baselines under Article 5, paragraphs 3 and 8 ter (d)

The Seventeenth Meeting of the Parties decided in Dec. XVII/22:

  • 1 To note that Serbia and Montenegro has not reported data for one or more of the years which are required for the establishment of baselines for Annexes B and E to the Protocol, as provided for by Article 5, paragraphs 3 and 8 ter (d);
  • 2 To note that that places Serbia and Montenegro in non-compliance with its data-reporting obligations under the Montreal Protocol until such time as the Secretariat receives the outstanding data;
  • 3 To stress that compliance by Serbia and Montenegro with the Montreal Protocol cannot be determined without knowledge of those data;
  • 4 To acknowledge that Serbia and Montenegro has only recently ratified the amendments to the Protocol to which the data-reporting obligation relates, but also to note that it has received assistance with data collection from the Multilateral Fund for the Implementation of the Montreal Protocol through the Fund’s implementing agencies;
  • 5 To urge Serbia and Montenegro to work together with the United Nations Environment Programme under the Compliance Assistance Programme and with other implementing agencies of the Multilateral Fund to report data as a matter of urgency to the Secretariat and to request the Implementation Committee to review the situation of Serbia and Montenegro with respect to data reporting at its next meeting.

Source:https://ozone.unep.org/treaties/montreal-protocol/meetings/seventeenth-meeting-parties/ decisions/decision-xvii22-non

  • [1] 1985 Helsinki Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at least 30 per cent (Protocol on Sulphur emissions), Articles 4 and 6, available at https:// www.unece.org/env/lrtap/sulf_hl.html accessed 1 April 2020. 2 Jorgen Wettestad, ‘Monitoring and Verification’, in Daniel Bodansky, Jutta Brunnée, and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford University Press 2008), pp. 975-976. 3 Philippe Sands, Jacqueline Peel, Adriana Fabra and Ruth Mackenzie, Principles of International Environmental Law (3rd edn CUP 2012).
  • [2] Jesse H. Ausubel and David G. Victor, ‘Verification of International Environmental Agreements’ (1992) 17 Annual Review of Energy and the Environment, pp. 1-43. 2 Winfried Lang, ‘Compliance Control in International Environmental Law: Institutional Necessi-ties’(1996)56ZAOERV,availableathttps://www.zaoerv.de/56_I996/56_1996_3_a_685_695. pdf accessed 1 April 2020.
 
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